Typed on three different types of paper, excessive space between content & signatures, use of different pens for signatures, all pages not having signatures - not genuine 'Will': SC

The SC on April 24, 2020 {SHIVAKUMAR & ORS. v SHARANABASAPPA & ORS.} held that the problems relating to the probative value of the Will (Ex. P.4) do not end with the abnormal features and curious factors (as mentioned in latter part). It was held that a close examination of the Will takes from abnormalities to mysteries too. It was held that in the opening passage of this document, the recital is to the effect that the testator was making the Will because so many accidents do happen. It was observed by the SC that the fact remains that the testator and his wife both died in the car accident on 20.05.1994 but, it would require travelling into an entirely mystical region to accept that while making the Will on 20.05.1991, the testator had the premonition that he would perish in a vehicular accident. 

It was further held by the SC Bench, comprising of Justice A.M. Khanwilkar, Justice Hemant Gupta &  Justice Dinesh Maheshwari, that the indisputable fact that page number 2 and page number 4 of the document in question (EX. P.4) do not carry the signatures of the testator whereas other pages do carry his signatures, places the document in conflict with, or at least non-compliant with, the requirement of clause (b) of Section 63 of the Succession Act. It was held that the document in question (Will) could be rejected outright for this reason alone. 

In the present appeal, the following points arose for determination before the SC: i. As to whether the High Court was right in reversing the decision of the Trial Court and in holding that the contested Will was not a genuine document? ii. As to whether the High Court ought to have considered remanding the case to the Trial Court?

The SC after dealing with law, as developed, in regard to 'Will', has summarised the legal position, as mentioned hereinafter:

"11. For what has been noticed hereinabove, the relevant principles governing the adjudicatory process concerning proof of a Will could be broadly summarised as follows:–

1. Ordinarily, a Will has to be proved like any other document; the test to be applied being the usual test of the satisfaction of the prudent mind. Alike the principles governing the proof of other documents, in the case of Will too, the proof with mathematical accuracy is not to be insisted upon.

2. Since as per Section 63 of the Succession Act, a Will is required to be attested, it cannot be used as evidence until at least one attesting witness has been called for the purpose of proving its execution, if there be an attesting witness alive and capable of giving evidence.

3. The unique feature of a Will is that it speaks from the death of the testator and, therefore, the maker thereof is not available for deposing about the circumstances in which the same was executed. This introduces an element of solemnity in the decision of the question as to whether the document propounded is the last Will of the testator. The initial onus, naturally, lies on the propounder but the same can be taken to have been primarily discharged on proof of the essential facts which go into the making of a Will.

4. The case in which the execution of the Will is surrounded by suspicious circumstances stands on a different footing. The presence of suspicious circumstances makes the onus heavier on the propounder and, therefore, in cases where the circumstances attendant upon the execution of the document give rise to suspicion, the propounder must remove all legitimate suspicions before the document can be accepted as the last Will of the testator.

5. If a person challenging the Will alleges fabrication or alleges fraud, undue influence, coercion et cetera in regard to the execution of the Will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the Will may give rise to the doubt or as to whether the Will had indeed been executed by the testator and/or as to whether the testator was acting of his own free will. In such eventuality, it is again a part of the initial onus of the propounder to remove all reasonable doubts in the matter.

6. A circumstance is “suspicious” when it is not normal or is ‘not normally expected in a normal situation or is not expected of a normal person’. As put by this Court, the suspicious features must be ‘real, germane and valid’ and not merely the ‘fantasy of the doubting mind.’

7. As to whether any particular feature or a set of features qualify as “suspicious” would depend on the facts and circumstances of each case. A shaky or doubtful signature; a feeble or uncertain mind of the testator; an unfair disposition of property; an unjust exclusion of the legal heirs and particularly the dependants; an active or leading part in making of the Will by the beneficiary thereunder et cetera are some of the circumstances which may give rise to suspicion. The circumstances above-noted are only illustrative and by no means exhaustive because there could be any circumstance or set of circumstances which may give rise to legitimate suspicion about the execution of the Will. On the other hand, any of the circumstance qualifying as being suspicious could be legitimately explained by the propounder. However, such suspicion or suspicions cannot be removed by mere proof of sound and disposing state of mind of the testator and his signature coupled with the proof of attestation.

8. The test of satisfaction of the judicial conscience comes into operation when a document propounded as the Will of the testator is surrounded by suspicious circumstance/s. While applying such test, the Court would address itself to the solemn questions as to whether the testator had signed the Will while being aware of its contents and after understanding the nature and effect of the dispositions in the Will?

9. In the ultimate analysis, where the execution of a Will is shrouded in suspicion, it is a matter essentially of the judicial conscience of the Court and the party which sets up the Will has to offer cogent and convincing explanation of the suspicious circumstances surrounding the Will." 

It was held by the SC that at least four unusual features of the document in question are evident on the face of the record. It was held that the disturbing unusual features of the document in question are that: (i) it is typewritten on 3 different sheets of paper, i.e. which are definitely not of the same colour and have not been picked up from the same stack; (ii) the placement of signatures of the testator is not of uniformity and excessive space is seen between the typewritten contents and the signatures on page number 1 and page number 5; (iii) different pens have been used for signatures on different pages with ink pen having been used for first and third signatures (on page number 1 and page number 5) and ballpoint pen having been used for the second signature (on page number 3); and (iv) all the typewritten pages do not carry the signatures of the testator, with there being no signature on page number 2 and page number 4. It was held that it does not require any great deal of elaboration that in the ordinary, normal and usual course, such a typewritten document is expected to be on the sheets of paper drawn from the same stack; there would be reasonable uniformity in placement of the signatures running through the document and every signature would be placed alongside or at a reasonable distance from the contents; a single pen or instrument would be used for signing at all places; and, ordinarily, a maker of the Will would not leave such ambiguity in expression of his intention as would arise by his signing 3 pages and not signing 2 other pages of the same document. It was further held that in fact, in the normal and ordinary course of dealing, the maker of a Will is least expected to leave any page of the document unsigned. It was held that although existence of some such unusual features (as noticed above) cannot be ruled out during the course of typing and signing of the document but when all such unusual features combine together, the document becomes too vulnerable and cannot be readily accepted as a genuine document. 

It was held that when all the aforesaid abnormal, curious and rather mysterious circumstances are put together, the inescapable conclusion is that the document in question cannot be accepted as the last Will of the testator. It was held that the unexplained, unusual and abnormal features pertaining to the document only lead to the logical deduction that the document in question was prepared after the demise of the testator with use of blank signed papers that came in possession of the propounders and their associates. It was observed by the SC that the High Court has stated such deduction after thorough examination of the material on record and, in its view, rightly so. It was held that it is noticed that all the features and factors indicated hereinabove are very much available on the face of the record. It was observed, however, the Trial Court, even while dealing with several contentions in excessive details, either failed to notice some of the features indicated above or simply brushed aside the particular feature carrying abnormality with the observations to the effect that the propounders were not to be expected to remove the suspicions concerning the document when they had no role in its execution. It was held that the Trial Court having, obviously, misdirected itself on several of the key and pivotal factors, its decision could not have been approved.

It was further held by the SC that it is sought to be contented on behalf of the appellants that using of blank papers had not been the objection taken by the defendants. It was observed by the SC that the contention remains bereft of substance for the simple reason that the defendants indeed asserted that the document in question was a fabricated one. It was held that the likelihood of it being drawn on the available blank papers with signatures of the testator is nothing but a deduction that logically comes out of the examination of the document in question.  

WHETHER REMAND WAS CALLED FOR

It was held by the SC that a conjoint reading of Rules 23, 23A and 24 of Order XLI brings forth the scope as also contours of the powers of remand that when the available evidence is sufficient to dispose of the matter, the proper course for an Appellate Court is to follow the mandate of Rule 24 of Order XLI CPC and to determine the suit finally. It was observed that it is only in such cases where the decree in challenge is reversed in appeal and a re-trial is considered necessary that the Appellate Court shall adopt the course of remanding the case. It was held that it remains trite that order of remand is not to be passed in a routine manner because an unwarranted order of remand merely elongates the life of the litigation without serving the cause of justice. It was further held that an order of remand only on the ground that the points touching the appreciation of evidence were not dealt with by the Trial Court may not be considered proper in a given case because the First Appellate Court itself is possessed of jurisdiction to enter into facts and appreciate the evidence. It was held that there could, of course, be several eventualities which may justify an order of remand or where remand would be rather necessary depending on the facts and the given set of circumstances of a case. 

It was held by the SC that as noticed, there had been several suspicious circumstances surrounding the Will in question, some of which were noticed by the Trial Court but were brushed aside by it on untenable reasons. It was held by the SC that the High Court has meticulously examined the same evidence and the same circumstances and has come to a different conclusion that appears to be sound and plausible, and does not appear suffering from any infirmity. It was held by the SC that there was no reason or occasion for the High Court to consider remanding the case to the Trial Court. The contention in this regard is required to be, and was, rejected by the SC. 

In the present appeal before the SC, the plaintiff-appellants have challenged the judgment and decree dated  passed by the High Court of Karnataka at Bangalore whereby, the High Court reversed the judgment and decree dated 12.09.2001 passed by the Court of Civil Judge (Senior Division), Koppal.

It was held by the SC that having dilated on various major features which, individually and cumulatively, lead only to the conclusion that the document in question cannot be accepted to be the last Will of late Shri Sangappa, it does not appear necessary to discuss several other shortcomings in the case of the plaintiffs, including various other factors like that the plaintiffs never took steps to get the statement of the said Swamiji recorded, who was otherwise referred to by all the material witnesses as being the person before whom the document was allegedly opened. 

It was held by the SC that the document in question falls flat at the very first question that is, as to whether the testator signed the Will in question. The answer to this question is only in the negative. It was further held that this is apart from the fact that the document in question, propounded as a Will, is non-compliant with the requirements of clause (b) of Section 63 of the Succession Act.

In the ultimate analysis, It was held by the SC that it is satisfied that the High Court was right in reversing the decision of the Trial Court and in holding that the contested Will was not a genuine document, and there was no reason for the High Court to remand the case to the Trial Court. Accordingly the appeal was dismissed by the SC.